07/18/2012

While criticisms of Chief Justice Roberts from the right wing of the legal blogosphere has generally been strong, some have argued that Roberts's decision might be defended as an exercise of judicial restraint. See, e.g. Orin Kerr, Joel Alicea, and Greg Weiner.

Of course, that Roberts followed a type of judicial restraint in Sebelius does not make him a principled follower of judicial restraint. If Roberts follows judicial restraint when it allows him to reach a result that protects his reputation, but does not follow such restraint in other cases, then one can hardly defend his decision in Sibelius as a principled exercise of such restraint.

The way to explore whether Roberts’s opinion was principled is to examine the other cases that Roberts has decided. I am not ready to engage in any comprehensive examination, but we can gain some insight by simply exploring some of the other cases where Roberts joined the liberals this past June. For my discussion of these cases, see here.

Judicial restraint is not a simple thing. In Sebelius, Roberts purported to interpret a federal statute so that it would be constitutional. This is one type of judicial restraint (although I have long been skeptical of the claim that rewriting a statute is a form of restraint). But the more basic type of judicial restraint is to interpret the Constitution so as to allow the legislatures to enact provisions it desires (and believes are constitutional). In doing this, the court either confers deference on the legislature or simply interprets the Constitution in a way that allows the legislature ample room to pass laws.

In June, Roberts did not seem to do that. Even in Sebelius, his interpretation of the Commerce Clause was not restrained or deferential under this approach. Moreover, in the Stolen Valor case, Roberts joined an opinion that held the federal statute unconstitutional, even though precedent existed that would have allowed the statute to be held constitutional. And in the Arizona immigration case, Roberts joined an opinion that interpreted a congressional statute’s preemptive effect broadly to strike down much of an Arizona legislature’s enactment. (While one might argue that the Court in the Arizona case merely chose one legislature over another, the stronger argument is that the Court expansively interpreted the federal legislature’s enactment to strike down the state legislature’s. The restrained approach was arguably to interpret both legislatures’ acts fairly.)

It is also worthwhile noting the case of Citizens United, where Roberts joined an opinion striking down campaign finance restrictions that applied to corporations. Not much restraint there. While some have argued that Roberts’s preferred course in that case was to stretch the statute to render it constitutional, he ended up not reaching that result but instead joining a decision to strike it down. What he initially might have preferred, but chose not to do, doesn't really count. (One might also place the Seattle Schools case in this category of unrestrained decisions.)

In the end, defenders of Chief Justice Roberts’s decision in Sebelius as an exercise of judicial restraint need to do more. They need to explain the dominant pattern of his decisions – or else leave open the possibility that he is merely a strategic believer in judicial restraint.